n CANo 3)232/2 FoE Deceef Photo Charyes R . Q 4 TTT (.4o-7-2°t o-7,°o,ooo-TYY ChDre 2 : 4 2 8.T , Thegs t, ftrre * t - : {o/NG. T.NJ.TT, , WEr/{tco/v (nET, T , ), OF 5th JT CIVIL JUDGE SR. DN., AKOLA INTHE COURT(Presided over by N. S. Puri ) REGULAR CIVIL SUIT NO,.358/2021. {MHAKO020042462021} B.G. Steel & Infra, Exh.36 A registered partnership firm, Duly registered with the Registrar of Firms at Nagpur, through partner, Manoj s/o Mohanlal Bilala, Aged about 46 years, Occ. Business, R/o. Gita Nagar Bye-pass, Akola .. PLAINTIFE -VERSUS- Akola Municipal Corporation, Akola Through Commissioner, Akola . DEFENDANT. CLAIM: SUIT FOR MANDATORY INJUNCTION. Appearance :-Shri N. M. Agrawal, Ld. Advocate for the plaintiff. Shri M. A. Adil Ld. Advocate for the defendant. The present suit is filed for mandatory injunction. Description ofthe suit, is as under: K 2 The subject matter is Sittuated at mouje Akkalkot, Tq. and Dist. Akola, out of field Survey No. 2/1, admeasuring 11100 Sq. ms, situated on Washim Bye-pass Square, Balapur Road, Akola, which was converted into non-agricultural commercial building Layout vide Case No. AMC/N.A./01/2015-16. Thefact of the plaintiff'scase in nutshell,stated asunder 3] It is the contention of the plaintiff that the suit property is owned and possessed by him which was converted into non agricultural commercial building layout. The plaintiff was intending to construct the commercial complex on the plot therefore, he has submitted building plan with the defendant on 4.10.2018 alongwith requisite drawing, documents, and plaintiff as also paid building permission and inspection fees of Rs. 3,000/-. Thereafter, plaintiff has received one letter dated 26.10.2018 from the defendant wherein defendant has sought compliance as per the letter. 4] The plaintiff has complied the requirement of defendant. However, in spite of required lapse of time the plaintiff did not receive building sanction, therefore, the plaintiff has issued letter dated 19.1.2019 and 4.2.2019 to the defendant, however, the defendant did not issue the building commencement certificate nor replied the letter given to the defendant. 5] Plaintiff further unfolded the fact that the plaintiff has filed suit against defendant bearing RCS No. 142/2019 for declaration of deem permission. However, after filing of the suit the defendant issued commencement certificate alongwith the sanction plan to the plaintiff on 27.5.2019. The plaintiff has started construction which in substantial progress. 3 Thereafter plaintiff again revise building construction plan 6 for sanction dated 1.3.2021 alongwith payment of requisite permission the fee vide receipt no. 9 as demanded by the corporation was paid by communication from the plaintiff. The plaintiff did not receive any defendant within 60 days from the receipt of revised building construction plan, therefore, as per the provision of law and UDCPR plaintiff revise deem permission in accordance with revise plan submitted by plaintiff for the building construction. 7 The plaintiff further stated that after grant of deem permission plaintiff had issued intimation of claim of deem permission to the defendant by letter dated 25.8.2021 and also requested the defendant to issue one copy of sanctioned plan and commencement certificate. The said intimation was received by the defendant, however, the defendant did not communicate its remark about grant of deem permission to the defendant within 15 days from the receipt of intimation. Therefore, the proposal was approved in view of provisions of clause 2.6.2 of UDPCR2020 and it was then mandatory for the defendant to issue commencement certificate alongwith the one set of duly approved plan. However, defendant failed to comply with the provision, therefore, plaintiff had issued notice under section 487 of the Act. Even though the notice is duly served but defendant failed to comply it. Therefore, plaintiff is compel to file the present suit. this 19th Civil Judge (Sr:Dn.), Akola on I N. S. Puri, 5th Jt. of Shri. N. M. Agrawal, Advocate day of November, 2022 in presence Advocate for Defendant., I pass the for Plaintiff and Shri. M. A. Adil, following order: ORDER 1. The suit is decreed with cost. 2. It is hereby declared that the plaintiff had received deem permission for the construction of building as per the clause 2.6.2 of UDCPR in respect of application for building sanction, permission submitted with defendant on 1.3.2021 alongwith building plan. 3. The defendant is directed by way of mandatory injunction to issue commencement certificate and building sanction plan in view of clause 2.6.2 UDCPR rules in respect of building sanction plan of plaintiff submitted on 1.3.2021. 4. Decree be drawn accordingly. Sd/ Date 19.11.2022 (N. S. Puri) sth Jt. Civil Judge S.D., Akola. DECREE(COST) ZTaT SiTetoT -R -H zTZT¥Eq 200=00 1. f a z 10=00 2. TrrTRTRTRY4 10=00 3. TUT STTtRI zTTE VËI Ya 4. FTTRRI YTEM 4 Ri2TETRTRT YtETN 150=00 150 00 6. WFI TJ 7. MTR v. 7.t R 8. 4TUTTRT St 8.TTTRTET * 70=00 10-00 10 Egoi araT fArT --11 TRI ZTUT UYT ZraTTT 11 iRW GTUT TYUYT TaTAT 370 00 230 00 7feaIr sIT TT 19 a r , 2022 t TStfTat a efa Rrzzafh feT SENIO JUDGE (T. FT) ww AKOLA NO : 3T3. A. TH. TUATES 3TS. UA. Z. 3TCTES TRUE CcGPY CopelbM Asstt Supck CJiS D)AKO 4 iO2)22 O2.2. 2 4) 1 v 4 i i , n l 1 t 1 a d i ulvr C 2 ) 2 . ?2 / ) Hoire grdi ifs n 2 2 2 2. 2 D n CAMo.3]3 2 / n Photo Charges Rs. 1 Total Rs ateO222 Presented on :20.10.2021 Registered on 25.10.2021 Decided on 19.11.2022 Duration on 01 Y, 01 M, 00 D IN THE COURT OF 5th JOINT CIVIL JUDGE SENIOR DIVISION AT AKOLA. (Presided over by Narendra S. Puri) REGULAR CIVIL SUIT NO.358/2021. {MHAKO20042462021} B. G. Steel & Infra, Exh.35 A registered partnership firm, Duly registered with the Registrar of Firms at Nagpur, through partner, Manoj s/o Mohanlal Bilala, Aged about 46 years, Occ. Business, R/o. Gita Nagar Bye-pass, Akola PLAINTIFE -VERS US- Akola Municipal Corporation, Akola Through Commissioner, Akola DEFENDANT. CLAIM: SUIT FOR MANDATORY INJUNCTION. Appearance Shri N. M. Agrawal, Ld. Advocate for the plaintiff. Shri M. A. Adil Ld. Advocate for the defendant. 191H- 2/12 JUDGMENT (Delivered on 19h day of November, 2022) The present suit is filed for mandatory injunction. Description ofthesuit,isas under 2] The subject matter is situated at mouje Akkalkot, Tq. and Dist. Akola, out of field Survey No. 2/1, admeasuring 11100 Sq. mtrs., situated on Washim Bye-pass Square, Balapur Road, Akola, which was converted into non-agricultural commercial building Layout vide Case No. AMC/N.A./01/2015-16. Thefact ofthe plaintiff'scasein nutshell, stated as under 3 It is the contention of the plaintiff that the suit property is Owned and possessed by him which was converted into non agricultural commercial building layout. The plaintiff was intending to construct the commercial complex on the plot therefore, he has submitted building plan with the defendant on 4.10.2018 alongwith requisite drawing, documents, and plaintiff as also paid building permission and inspection fees of Rs. 3,000/-. Thereafter, plaintiff has received one letter dated 26.10.2018 from the defendant wherein defendant has sought compliance as per the letter. 4] The plaintiff has complied the requirement of defendant. Howeve, in spite of required lapse of time the plaintiff did not 19111ftv 3/12 R, CS. No.358/2021 (U) receive building sanction, therefore, the plaintiff has issued letter dated 19.1.2019 and 4.2.2019 to the defendant, however, the defendant did not issue the building commencement certificate nor replied the letter given to the defendant. 5] Plaintiff further unfolded the fact that the plaintiff has filed suit against defendant bearing RCS No. 142/2019 for declaration of deem permission. However, after filing of the suit the defendant issued commencement certrificate alongwith the sanction plan to the plaintiff on 27.5.2019. The plaintiff has started construction which in substantial progress. 6) Thereafter plaintiff again revise building construction plan for sanction dated 1.3.2021 alongwith payment of requisite permission fee vide receipt no. 9 as demanded by the corporation was paid by the plaintiff. The plaintiff did not receive any communication from the defendant within 60 days from the receipt of revised building construction plan, therefore, as per the provision of law and UDCPR plaintiff revise deem permission in accordance with revise plan submitted by plainiff for the building construction. 71 The plaintiff further stated that after grant of deem permission plaintiff had issued intimation of claim of deem permission to the defendant by letter dated 25.8.2021 and also requested the defendant to issue one copy of sanctioned plan and 19111/vp commencement certificate. The said intimation was received by the defendant, however, the defendant did not communicate its remark about grant of deem permission to the defendant within 15 from the receipt of days intimation. Therefore, the approved in view of provisions of clause 2.6.2 of proposal was it was then UDPCR2020 and mandatory for the defendant to issue commencement certificate alongwith the one set of duly approved plan. However, defendant failed to comply with the provision, therefore, had issued notice under plaintiff section 487 of the Act. Even notice is duly served but though the defendant failed to comply it. plaintiff is compel to file the present suit. Therefore, 8] The defendant appeared in the suit and filed their written statement (Ex.9) thereby strongly resisted the claim of the It is the contention of the defendant that plaintiff. the present suit is not tenable in the eyes of law as the fact from the court and plaintiff has suppressed the material has not come before the court with clean hands. It is also contention of the defendant that the mandatory notice which is required to file suit not issued against law and liable to be dismissed. therefore, the suit is 9] The defendant further submits that the made out any case plaintiff has not therefore, mandatory injunction cannot be granted and as such the suit is liable to be COsts. dismissed with heavy 191TJ2n 5/12 R.CS. No.358/2021L) 10] In view of pleadings and document on record, my Ld. predecessor framed issue below Exh. 10. Same are reproduced along with findings followed by reasons. Sr. ISSUES FINDINGS No. 1. Does the plaintiff prove that he had receiveda deemed permission for Construction of building as per the clause of UDCPR2020 in respect of application . Yes dated 01.03.2021? 2. Does the plaintiff prove that he does not receive any intimation within 60 days from 01.03.2021 & as per the rules deemed Yes permission was granted ? 3. Does the plaintiff entitled for declaration ? . Yes 4. Does the plaintiff entitled for mandatory| Yes injunction 5 Does the plaintiff entitled for any other| relief as sought ? Yes 6. What order and decree? Suit is decreed with cost REASONS 11] To substantiate his case, the plaintiff has adduced his evidence by way of affidavit (Ex.13) and relied on some documentary evidence at Exh. 17 to 23 and 26 and 27. Thereafter plaintiff closed his evidence vide pursis Exh. 28. Defendant not 19/7(02 ( GX12 ** adduced any evidence. As toIssue Nos.1to 6: 12) All the issues are interlinked with each other; therefore, they are taken for common discussion. 13) In the present suit very short question involved around which entire suit issues resolved. The plaintiff agitated the issue of deem sanction. The issue of deem sanction goes to the root of matter, therefore, I am taking into it for consideration. 14] To ascertain whether the plaintiff got deem sanction, it is necessary to scrutinized the evidence of plaintiff in the light of Unified Development, Control and Promotion, Regulation for Maharashtra' (hereinafter referred as UDCPR). 15 The first sub-question crop for consideration is that whether UDPCR rule/regulation are applicable to the present case. The Chapter 1 regulation no. 1.4 plays vital role, which provides that these regulation shall apply to all development and construction, part construction change of occupancy, reconstruction, development of size and sub division or amalgamation of land, revise pemission. 19117/on 7/12 R. C.S No.358/2021 (J 1.4 rules and Thus, in terms of chapter 1 regulation no. 16] are applicable to the case at regulation incorporated under UDCPR, my hand. with grant or 17] Chapter 2 regulation no. 2.6 onwords deals refusal of permission. Regulation 2.6.1 provides that after receipt sanction or refuse the notice/application the authority may either or directions as it plan or may sanction them with such modification may necessary after having recovered the necessary charges/fees and thereupon shall communicate its decision to person giving the notice in the prescribed form. 18] The plaintiff in that context deposed that he has submitted revise building construction plan for sanction vide case No. 14/659/2018-19 dated 1.3.2021. On perusal of Exh. 20 it appears that the plaintiffs contention found corroboration. The plaintiff submits the form for construction building which having seal of defendant as well as signature dated 1.3.2021. So far as necessary charges/fees is concern plaintiff also filed the copy of the fee receipt below Exh. 21 which shows that the plaintiff has deposited the requisite fee. 19] On perusal of cross-examination of plaintiff it appears that there is not a single suggestion which suggest that the defendant authority intimate in writing to the plaintiff about refusal or sanction 1911)w 8/12 or pointed out any objection. On record defendant not filed any single evidence which suggest that the Municipal corporation pointed out any objections or otherwise. 20] Thus, it can be safely said that the plaintiff applied for sanction but, the defendant fails to intimate in writing about sanction or refusal. Therefore, regulation 2.6.2 came into picture which says that if within the 60 days of receipt of the notice, alongwith necessary permission fee under the regulation, the authority fails to intimate in writing to the person, who has given the notice of its refusal or sanction or sanction with such modification or direction, the notice with its plan and statement shall be deemed tot have been sanctioned." 21] In the case at my hand the Akola Municipal Corporation not communicated within 60 days refusal or sanction. On perusal of Exh. 22 it appears that the plaintiff specifically informed to the defendant about the deem permission under the UDCPR. The said letter having the stamp and signature of the official which is itself sufficient to hold that the letter is received by the defendant. It is also important to note that on 16.09.2021 the plaintiff also issued the notice under section 487 of MMC Act but, the defendant keep mum. Therefore, in terms of rules and regulations under UDCPR there is deem sanction. It is also important to note that upon receipt of intimate for deem permission the authority shall within 15 days communicates its remark failing which the proposal shall be 291/o 9/12 R. C.S No.358/2021 ( certificate alongwith one set of duly approved and commencement shall be issued to the approved plan for the propose development applicant within 15 days thereafter. the office not the at my hand Concern 22) In case issue c o m m e n c e m e n t any remark to the plaintiff or communicate certificate alongwith approved plan. The defendant though got officer. ample opportunities not examined any of the concern the plaintiff remain unshaken. Therefore, the evidence put forth by disbelieve testimony of There is absolutely no evidence on record to that the the in such circumstances I am of the view plaintiff thus, the plaintiff is entitle for the declaration as sought alongwith injunction. Before concluding the discussion it is desirable on my 23] the defendant regarding the part to mention the objection raised by prayer clause 2 of the plaintiff wherein the plaintiff asked temporaryy mandatory injunction. The defendant at length argued that the be as he is asked the relief of granted plaintiff relief cannot the trial when the suit temporary nature therefore, at the fag end of is going to disposed off the relief in the nature of temporary cannot be granted. I have heard both the side at length. The advocate for the 24] submits plaintiff filed pursis below |Exh. 34 wherein he specifically 91/ 10/12 that the relief at clause no. 2 be treated as permanent mandatory injunction. It is also important to note that at issue no, 4 the issuing regarding the mandatory injunction is framed and not about the temporary mandatory injunction. Here, the title of the suit is also play important role. The suit title as 'Suit for Mandatory Injunction'. Thus, the using of word temporary is only a technical error which is already rectified by plaintiff by filing pursis below Exh. 34 Thus, I found no substance in the argument that mandatory injunction cannot be granted. More specifically when statued itself place obligation on the part of Municipal authority. 25] Thus, to sum up all the discussion I come to the conclusion that the plaintiff received deem permission for construction of building and therefore he is entitled for Commencement certificate subject to the restriction mentioned in the proviso clause of regulation no. 2.6.2. Thus, I answered issue nos. 1 to 6 accordingly and passed the following order. ORDER 1. The suit is decreed with cost. 2. It is hereby declared that the plaintiff had received deem pemission for the construction of building as per the clause 2.6.2 of UDCPR in respect of application for building sanction, permission submitted with defendant on 1.3.2021 alongwith building plan. 91rn/ 11/12 R. CS No358/2021 4 3. The defendant is directed by way of mandatory issue commencement certificate and injunction to building sanction plan in view of clause 2.6.2 UDCPR rules in respect of building sanction plan of plaintiff submitted on 1.3.2021. Decree be drawn accordingly. (N. S - P i u r i 5 1 1 n Date: 19.11.2022 5th Jt. Civil Judge S.D., Akola. TRUE-OOPY Asstt. Supdt. C. J. (S D.). AKOLA ) t e i ten sst a-aref afke2211 22 Satatz a a r )3r gof sATetka_A212L22 f 2 2/2 )THCT&varai iTF 3IFIITT ara o 2 3riervm ra fåat afes_29 222 O+ 02-I 1222